But - I need her to appear for a short time in my book. I already plan to change her name, or just refer to her as his ex, but SHE will know it's her. We haven't approached her (I'm not that far along yet) but I'm fairly certain she will not cooperate.

I'm being careful not to say anything too inflammatory, but since it's coming from me I can already imagine the lawsuit.

I could leave her out but I fear it will diminish the backstory. I'm writing about our experiences while awaiting my husband's visa in Mexico (we're here now). He was going through the divorce when we started dating and the struggle to stay together at that time, often wondering if it's worth it, is reflected in our struggles now.

If I don't name her, tread lightly on her actions, and she's not a public figure, can she still sue me? What would you do?

I'd appreciate your honest feedback!

Melanie

Siddow

09-06-2007, 04:26 AM

Anyone can sue anybody, anytime, for any reason, at least in the US.

Whether they'll win is another story, and a speculative one at that.

If it were me, I'd take the safe road and focus on personal experience without naming the outer players. There's lots you can say about personal struggles with visas and new relationships created in the midst of divorce without pointing fingers at outside parties.

Del

09-06-2007, 04:30 AM

I think as long as the experience you write about is also yours there isn't anything she can do. But if you write something you heard and it is true and she can prove it...

Well, now you have to get into if it was defamatory which if readers can identify her in your book then she could sue for damages. But just because she thinks it is her doesn't give her a case.

If what you write about her is true, she cannot sue for damages but I think she would have a case for a share of royalties, as I said, if the experience wasn't your's as well. But a share based on the contribution her experience made to your book wouldn't amount to anything. She would be lucky to find a lawyer to take it.

Also, since you are using a fictitious name, if there is someone else that has had that same experience as you write it she wouldn't have a case.

This isn't legal advice. Just food for thought.

Del

09-06-2007, 04:36 AM

Anyone can sue anybody, anytime, for any reason, at least in the US.

This is true, unfortunately but it is very hard. It is hard enough to sue when it is a matter of negligence and injury (voice of experience).

And if you don't already have a fortune that the attorney can get a piece of, none will want to represent her.

It's about the money. No money, no case.

melaniehoo

09-06-2007, 04:46 AM

These are good points. As of now, she only appears in an early chapter. I met them when they were together and was friends with him for years while they were married, so it's getting into the issue of being dishonest with myself by leaving that part out.

Part of me wants to include her just to prove that despite the way she's treated me in the past, I can treat her with respect and dignity.

johnrobison

09-06-2007, 04:51 AM

For her to have a claim against you she would have to demonstrate that she suffered some tangible harm as a result of some willful or negligent, actionable, action.

As an example, you'd have to say something provably untrue, or something that was an obvious invasion of privacy, the telling of which was malicious.

Kudra

09-06-2007, 12:52 PM

Very interesting. How about if you want to write about your own ex-boyfriends/girlfriends or ex-husbands/wives? Understandably, it's not all positive, and sometimes they are identifiable, by at least a small group of people. How do you work around that?

For a thorough look at the issues, scholarly but for general readers, see William K. Jones, Insult to Injury: Libel, Slander, and Invasions of Privacy (University Press of Colorado, 2003).

--Ken

Citizen Rob

09-07-2007, 04:24 PM

Remember, libel isn't about whether or not you are saying something that is unflattering, but rather if what you are saying is true. That's the good news, assuming you're not intending to lie. (Somehow I don't suspect that you are!)

The other issue, however, is invasion of privacy, particularly if you are revealing information about a person that could be embarrassing. Considering that you are talking about the ex-wife of someone whom you are now married to, it is reasonable to expect that her identity could be easily discovered, regardless of pseudonyms, detail changes, etc.

I think you might be getting ahead of yourself, however. Write your story the way you think it should be written. If you sell your story, you will eventually be subjected to a legal review, in which an attorney for the publisher reads your manuscript and then goes over the whole thing with you. My legal review lasted about five hours, and at the end of it, I had a (hopefully) litigation-resistant book. Sort of a beating, especially since I was doing it over the phone, but worth it in the end.

I'd say write your story and let the lawyers decide when the time comes.

Sakamonda

09-07-2007, 07:55 PM

Citizen Rob gives the best advice. Write your story, make sure it is true and verifiable, and don't do it with malicious intent. Once you have a publishing contract, the publisher's lawyers will do everything they can to help you make the necessary changes/add disclaimers to reduce the likelihood you will be sued.

The burden of proof for libel/defamation is very, very high in the US. Just because someone sues you for libel/defamation doesn't mean they can win in court. The most difficult thing for them to prove is that you wrote the book with malicious intent. This is often nearly impossible to prove.

Susan B

09-07-2007, 08:45 PM

Ann Lamott addresses this in an interesting way in her wonderful book on writing, "Bird By Bird."

She suggests if you want to write about an ex, describe him as having...well, let's just say "not too well-endowed"! (She says it in her own earthy way :-) That way, he'll never come forward!

Humorous, but the bit of helpful advice might be to give the ex characteristics that are strikingly different from who she is, and in a way that's quite obvious. Give her red hair, or a southern accent, some other demographics. It's not a guarantee, and since she's an ex-wife she can be tracked, perhaps. But it's an extra layer of protection.

I do agree all that can wait till after the book is in the hands of editors!

Good luck

Susan

melaniehoo

09-07-2007, 08:54 PM

This is all very helpful, thanks!

I don't even describe her other than being his ex, although I did call her crazy... I kid. I just looked over what I wrote and she's only on one page. I do mention a few stunts she pulled, but in a general sense and without dialogue. (she erased my number from his phone while they were signing divorce papers, but only after calling me at my office - see, crazy.) I focus more on how it affected me, blah blah, than going into details about her. I could find softer language, but I'll wait until I'm feeling generous. :)